How Choosing Money over Integrity Affects Your Relationship with Opposing Counsel
Integrity is hard. It requires diligence and guardianship. Integrity is a fragile thing that can be shattered like a candle globe. Once broken, even if reassembled, others aren’t going to have the same trust in its being structurally sound as they had before.
Integrity in the face of a client’s dishonesty
During some settlement discussions about a case pending in one of the more liberal venues in Alabama, opposing counsel and I were talking about the merits of the case to try to reach a settlement agreement. He pointed out the liability for the accident – there was no disputing that. His client had incurred some medical expenses and undergone not insignificant treatment. Because of these things and the venue, he was making a policy limits demand.
It was my turn to present my side. As the uninsured motorist carrier, I didn’t have any motivation to offer my policy limits – even on my worst day (which might be very bad in that county), my client couldn’t lose any more than it was contractually obligated to pay. But more importantly, the plaintiff had outright lied in her deposition about some things. Important things. Things about her pre-existing condition, and past medical treatment, and prior lawsuits. And we had wrapped all those lies into a nice, tidy undeniable package.
When I mentioned the problems with the plaintiff’s testimony to opposing counsel, he didn’t say, “Yeah, I understand that’s going to be a problem I’ll have to deal with.” He didn’t say, “I think I can still rehabilitate my client afterward.” There were any number of responses that would have been appropriate. I’ve been on both sides of this conversation before, both bearing witness to the lying and having the client who lied. I know what the usual responses are.
I didn’t get the response I expected. What opposing counsel said was, “Eh. We’ll just tell the jury she’s old and forgot about it.” [Just for context here, we’re talking about her forgetting about years of prior problems with this part of her body, a workers’ compensation claim, and a lawsuit]. “Besides,” he added, “the jury won’t like you if you beat her up about it. So…”
I was impressed. I wasn’t looking for him to be contrite on behalf of his client. But neither was I expecting him to be dismissive of her dishonesty because … venue.
There were a lot of things I was inclined to say in response. None of them were very kind. But none of them actually needed to be said. Now we know where he’s going to land on these kinds of issues in the future, and that’s enough. So what I actually said was, “Okay. Well, I’ve made my offer, and it’s never going to be higher than that.” He followed up with, “I think the jury is going to give my client more than your policy limits.” I said, “Maybe. We’ll take that chance.”
The fallout of choosing temporal things
You can’t make your client’s decisions for them. If they choose to lie during a deposition, you have some options. You can just let them be dishonest, hoping that opposing counsel isn’t aware of their misappropriation of the facts. You could pause the deposition, step out with your client, then come back in to “clarify” something. Or if you’re unaware of the lies at the time of their occurrence (which sometimes happens because – and you may find this hard to believe – some clients aren’t entirely forthright with their own lawyers), you can try to fix them later by amending responses to Interrogatories. Or at the very least, you can acknowledge the problem during conversations with opposing counsel.
But if you choose otherwise, if you choose to stand behind your client’s lies rather than to remediate them, you’re going to burn bridges with opposing counsel. The next time I’m tempted to make a small misrepresentation or be outright dishonest, I’m going to try to keep this in mind – whatever the matter at hand, it’s not worth shattering my integrity with the other person. If she can’t trust me to be honest, we can’t have a working relationship, which will make the next thirty years of practicing law more difficult than necessary.
Photo by Damian Gadal.